Keith Sawyer: Token nonlawyer. Underlying social and human process is creativity/innovation. Huge amount of research in past 10-20 years. Explaining Creativity is his big book on this. The creative process is the same regardless of the discipline—writing a novel or technological invention. There’s an individual cognitive process; group dynamics (organizational behavior)—a lot of research on incentives and motivations in individuals and groups. At organizational level: culture, leadership style. Started to look at diffused/distributed networks of innovation.
All creativity is based in the same cognitive processes. Creativity comes from constantly moving stuff around—lots of small moments. Mismatch between tiny little moments and how they build together over time to result in something that’s patentable or copyrightable. KSR makes a distinction between ordinary and real innovation—but there’s no such distinction in creativity research.
Distinction between problem finding and problem solving. Famous inventors say: most important thing is to formulate a really good question. As opposed to identifying a good solution. Patentable = the solution. KSR: defendants’ counsel seemed to be arguing that finding the problem was the real innovation, but the Court didn’t like that argument. That’s problem finding. The process is long, hard work; you don’t just meditate and have a brilliant insight from above; it requires doing a lot of work. Thus he studies intrinsic motivation: what keeps you going through this long process? Distinction between extrinsic motivation and intrinsic motivation that gets you through the long hours and small sparks of insight.
His research on groups: jazz ensembles, theater groups, business groups. Small ideas don’t all have to come from the same individual. Well functioning organizational dynamics can build up a successful innovation. Then the issue is how do you distribute/attribute creativity to individuals who participated? Can be difficult to identify percentage contributions. With ensembles, it’s almost impossible to reductively analyze one individual’s contribution, which is similar across many group systems if they are functioning well.
Two colleagues at Wash U. wrote Against Monopoly, arguing that IP provides exactly the wrong incentives for the type of innovation that we want. Finds this thesis provocative.
Jessica Silbey: Does IP incentivize progress? Fieldwork with artists, scientists, engineers, filmmakers, lawyers, etc. IP doesn’t come up as a driver: Serendipity, luck, problem-solving, intrinsic motivations are the sources of beginnings in IP industries. But law wants dissemination of the result—the IP clause isn’t so much about the making as about the dissemination—so does IP prevent a market failure? For her dataset, the answer is that IP plays a very small role in successful dissemination and commercialization of most things protected by IP, from film to pharmaceuticals to novels to medical devices. Both individual creators and their firms make a living through reputation, loyalty, market share, complementary products, first-mover advantages. Contracts for services play a huge role. IP plays one of the many roles in the livelihood of these people as defensive: freedom to operate/room to run. Rarely use a royalty stream to make their living. Comparing statutory prerogative and case law to the empirical grounded descriptions of innovation shows a real inverse relationship.
Do they care about copying? When do they care? Answer: not all that much. They tolerate it—cf. literature on tolerated uses. Never asked directly about IP until the end of the interviews. They eventually get around to why and how they claim work as theirs and not someone else’s. Most of the time the litigation is around ego and reputation and not business necessity. Of course business necessity claims exist, but the ones that they described to her are patent claims about authorship or copyright claims about attribution. There’s a misfit between this kind of claiming and the law.
They’ll tolerate unlawful copying because it maximizes other goals, like dissemination; because it’s a way to collaborate; because it’s a way to get ongoing revenue. They don’t care about the copying if it’s not going to harm them—if the copier isn’t making money/hurting my reputation. (These include publicly traded Fortune 500 companies.)
Q: some companies, like Apple, focus on protection of IP rights. Maybe not everyone, but there are a group of companies that seem to be motivated hugely by IP.
Silbey: there definitely are such companies. Medical device companies require a patent portfolio. That doesn’t mean that’s where they make the money—it’s first-mover advantage and trade secrets, even though the investors require a patent portfolio. It’s just not the most dominant game in town. The IP regime is blunt and one-size and it’s not the most important thing for most creative industries. The diversity of mechanisms by which many companies make money undercut the claimed necessity of IP.
Big publishing, big pharma: hard to believe when she heard them, but she did. Doesn’t think you can talk about organizations’ motivations without talking to the individuals who actually do the work. If we are going to talk about patents v. copyrights, across the board motivations are the same for sciences and expressive arts. Employees and shareholders in entities that have patents seem to recognize why companies need the patents and how the value of the patent flows back to the employee. With copyright industries, the flow between the creative and the company is less obvious to the makers. She sees a difference between individuals and organizations there.
Brett Frischmann: incentives arise in different ways. IP mitigates a particular kind of risk (though there are many other market risks) that could distort incentives that already exist in the market, or for cultural reasons. Whether/when/how this risk actually distorts incentives is incredibly ambiguous. If we just say “IP incentivizes” then we don’t address the ambiguity. Framing access/incentives and static/dynamic grossly oversimplifies. In almost all cases, access provides incentives for other people to do other things. This has effects on dynamic efficiency as well. These frames systematically bias our thinking.
Also, the incentive paradigm muddies the empirical picture. If we don’t know what we want, we don’t know how to count it. Counting patents is useless.
We adopt Bleistein’s nondiscrimination principle writ large and say “we don’t care about the objectives.” “Creating incentives” is ambiguous: incentives to invest in what? Which industries? We fear picking winners, which is a good fear. But adopting access/incentives rhetoric precludes us from asking what our objectives are.
Rebecca Tushnet: my interests lie specifically in noncommercial production, so I’m interested in protecting those sources of production from being suppressed or crowded out by commercialization: crowding out is, among other things, a risk of substitution of one, worse incentive for a better source of creativity. Research on rewarding creativity with direct payments: it often doesn’t go very well. After the reward, people seem less likely to go on and continue creating on their own. So that’s a direct kind of crowding out that seems to hurt both quality and quantity.
Intrinsic motivations: why does one person become a journalist and another a poet, and another an engineer? Indirect/lottery style rewards that are consistent with intrinsic motivations to create might do a bunch better: Justin Bieber’s rise to fame came from performing cover songs on YouTube and only later getting a recording contract. Brett’s picking winners issue: thinking of only commercial rewards therefore means picking winners; it’s not an issue you can avoid.
Noncommercial production is often understood in the legal discourse around copyright as another source of utility you get from other people. That is, instead of money you get reputation, which is sometimes valuable in itself (YouTube famous) and sometimes you can later cash it in (some accounts of open source software). One interesting feature of reputation, at least in the form of positive feedback: it’s a truism that there’s a declining marginal utility of wealth; new study on Yelp reviewers by Edward McQuarrie et al. also suggests there’s a declining marginal utility of positive feedback. At a certain point, a good reputation isn’t good at incentivizing new production, even though it helps when you start out.
Instead or alongside, many enduring motivations seem to be internal. There is simply a benefit people get from having a new thing they made in the world, which is more like a preference than an incentive. Eric von Hippel has studied this with respect to innovation in the patent space. User innovation is the source of major leaps forward in various fields (and users here include manufacturers who are also consumers of, say, large-scale computers and manufacturing equipment), and then commercializers and upstream manufacturers refine it and make it simpler/more widespread. I’ve done some work on similar internally motivated processes in copyright. Creators often experience creativity as both effortful and required—they write because they have to, because not writing or singing or whatever would hurt them. And the thing about preferences is that we have a much more limited set of theories on how to affect and shape preferences. Affecting preferences is a matter of education and marketing—and aside from antipiracy education campaigns, which Tarleton Gillespie has so trenchantly critiqued, we really haven’t thought much about encouraging the development of citizens who create. Which is funny since America is known for its creativity and innovation.
Normative considerations: empirically it may well be true that negative feedback discourages further creation. But that’s not enough of a reason to set up a regime to suppress negative feedback.
Fromer: how does literature on pecuniary reward map on to copyright/patent? Chance of making money—do artists and scientists see this as the same thing?
Silbey: several IP lawyers and VPs talked about how they incentivized disclosures of petty inventions: contests like American Idol within the company. For a $10 gift certificate and the approbation of colleagues, you’d share your cool idea—and it was incredibly productive for the company. Most innovative engineers were juvenile delinquents—always trying to break the rules. Reputational and collaborational benefits incentivized productive behavior.
Frischmann: If you think more about processes, you think about users differently: fair use and mapping fair use into patent law. If we decide that in patent law what we’re trying to do is enable cost recovery and facilitate competition instead of trying to induce more investment in areas than market would otherwise support, that would shape patent law, the patent/antitrust interface, and help justify an independent invention defense. Could also matter for scope.
James Quarles: many clients, esp. in high tech, complain bitterly about inability to get scientists to turn in bench disclosure forms. They’re not motivated by $1500, but the company wouldn’t pay them if they couldn’t get them to work. Can’t imagine an ANDA case in which ego would matter. Disconnect between inventors and financing?
Gregory Lavorgna: someone is getting some reward from the creativity, whether it’s the scientist’s psychic reward or recognition from peers. He didn’t need financial encouragement. But the company can’t afford to make products if they can’t protect the return on investment. Does protect innovation. (But that’s not really what Silbey’s research shows: that’s only true in some cases and it ignores the other sources of protection.) Isn’t designing around what the patent system was intended to do.
Lemley: flags industry-specific stuff: see different attitudes among different engineers. The way Twitter gets engineers to disclose is that it promises not to sue anyone and gives the inventor the right to veto a lawsuit. Individuals are often philosophically opposed to the idea of patent trolling.
Von Lohmann: Google: disclosure is hard because engineers despite the patent system. Our GC has to reassure them that their work is defensive. We should think about preferences and how we encourage the creation of people who are creative. In patents, a lot of the most creative people in tech view patents with disdain—may differ in pharma and other industries. On the copyright side, fair use: we have a system where we encourage criticism and parody, which people cringe from. The law discourages hagiography/praise, even though expression of love is all over the place. We should encourage that too.
Arti Rai: In copyright, we have values that are entirely noneconomic: foundation of democratic society. No discourse about that for patent law. Can patent law incorporate noneconomic incentives? At the systemic level we conventionally don’t think of patents as having anything other than an economic end goal. Myriad: access questions are part of the SCt’s motivation, but the rest of the discourse is missing.
Silbey: she did hear a lot of folks talk about democracy—encouraging invention disclosures/participation in the legal system through the story of the American inventor—the heroic story of making something useful and good for the world. That ideology is a mechanism by which incentives were affected.
Rai: but our case law talks about democracy in copyright, not so in patent. Why?
Ronald Lee: Open source illustrates how difficult it is to make generalizations about which business model encourages innovation. Both open source and patent pools are responses to address problems that applying the doctrine won’t do because it assumes a single solitary person/company in the lab. Private creators aren’t the only ones out there. Gov’t employees’ work goes instantly into the public domain: a different set of incentives. Sovereign immunity: affects remedies.
Jason Schultz: people resisting the patent system who are engineers—are we inhibiting some of the goals of the system itself if some open source has in fact ID’d a problem and solved it, it should be public domain/prior art. If that is hard to find, someone else might get an overbroad/invalid patent. So we should also think about incentives to disclose even unpatented innovation. Mozilla has a bug tracking program. 350,000 bugs fixed, zero patents. That’s a lot of potentially patentable things not even in the patent system.
Dreyfuss: Medical practitioners did raise democracy-type arguments about patents on medical procedures standing between doctors & patients, and patents on tax havens that would create inequality. We solved these problems quickly with a statute, but not so with copyright. More statutory, civil law approach in patent law. European Patent Convention has specific exclusions for morality, diagnostics, etc. Copyright is more standard-based than patents, in “popular” conception.
Rai: interesting that Congress is trying to come up with diagnostic exceptions, but courts don’t feel comfortable making exemptions based on a non-innovation-related argument.
Michael Traynor: recommended increased attention to attribution and small claims. Can we consider attribution in close fair use cases/building attribution into small claims. (I’m happy to use attribution as a factor in favor of fair use where appropriate—may not work so well with a parody as with a quote.)
Samuelson: research across fields—biotech ranked patents second in importance, software dead last—qualitative and quantitative evidence that patents serve different functions in different spaces.
Roedel: if they’re not using the patent system, then the patent system can’t function.
Samuelson: no one reads software patents! They’re useless for notice.